Amazon has filed a pair of motions in federal court, requesting that the court either allow it to present evidence regarding the Federal Trade Commission’s (FTC) statements on the Restore Online Shoppers’ Confidence Act (ROSCA) or permit the matter to be brought before the Ninth Circuit Court of Appeals. The motions come amid ongoing litigation accusing Amazon of deceiving customers into enrolling in its Prime service and complicating subscription cancellations.
In one motion, Amazon urges the court to grant an early motion in limine to introduce the FTC’s official statements on ROSCA, which the company argues lack clarity. Amazon maintains that these statements can demonstrate that the company did not have prior knowledge that its conduct violated the statute. “Good cause exists to do so in order to clarify relevant issues for dispositive motions practice and trial,” Amazon stated in the filing.
If the court denies this request, Amazon has asked for the opportunity to pursue an interlocutory appeal to the Ninth Circuit, seeking to address two critical questions: whether defendants are entitled to assert a due process defense based on lack of notice when an agency has not clarified the interpretation of a statute, and whether the FTC can impose civil penalties when the law was unclear at the time of alleged violations.
Amazon has previously argued that ROSCA, as applied to its business practices, fails to provide fair notice that its common marketing strategies are illegal. The company further asserts that the FTC has not proven that Amazon was aware that its practices violated the law, and thus, civil penalties should not apply.
“Although the court has denied motions to dismiss, Amazon will press these arguments in a forthcoming motion for summary judgment,” the company said. “One urgent issue that requires immediate attention is whether the FTC’s prior statements on ROSCA’s lack of clarity can be presented to show that Amazon did not knowingly violate the law.”
Amazon has pointed out that the FTC has repeatedly acknowledged the ambiguity of ROSCA and its lack of clear guidance for businesses. “No authoritative source — not the FTC, a court, or even a jury — has ever identified a compliant enrollment or cancellation flow under ROSCA,” Amazon’s motion explained.
The FTC has accused Amazon of using deceptive user interface designs, known as “dark patterns,” to trick consumers into enrolling in Prime subscriptions without their consent. The agency claims that Amazon “tricked and trapped” consumers into recurring subscriptions and made it difficult for them to cancel. The FTC’s 2023 lawsuit added three senior Amazon executives — Neil Lindsay, Russell Grandinetti, and Jamil Ghani — accusing them of being fully aware of the issues surrounding nonconsensual enrollments but failing to take action.
Additionally, the FTC has requested the court to impose sanctions on Amazon, alleging the company withheld tens of thousands of documents in bad faith, wrongly claiming they were privileged. The FTC revealed that Amazon later withdrew 92% of its privilege claims and produced 70,000 documents previously withheld.
Amazon and the FTC are currently engaged in ongoing litigation in the U.S. District Court for the Western District of Washington under case number 2:23-cv-00932.
